United States v. Bishop , 36 F. App'x 51 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
6-3-2002
USA v. Bishop
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2075
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-2075 and 01-2079
________________
UNITED STATES OF AMERICA
v.
DWIGHT BISHOP, Appellant in No. 01-2075
(D.C. Crim. No. 01-cr-00071-1)
----------------------------------------------
UNITED STATES OF AMERICA
v.
DWIGHT BISHOP, a/k/a AUBREY GREEN,
a/k/a HASSON CASON
Dwight Bishop, Appellant in No. 01-2079
(D.C. Crim. No. 99-cr-00639-3)
__________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
District Judge: Honorable Clarence C. Newcomer
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 20, 2002
Before: BECKER, Chief Judge, GREENBERG, Circuit Judge,
and BARZILAY, Judge, U.S. Court of International Trade.
(Filed: June 3, 2002)
_______________________
OPINION
_______________________
BECKER, Chief Judge.
This is an appeal by defendant Dwight Bishop from a judgment in a criminal case
entered pursuant to a plea agreement. The appeal presents the oft-recurring question
whether a sentencing court that declined the invitation of the defendant to depart
downward from the U.S. Sentencing Guideline Range understood that it had authority to
depart but exercised its discretion not to, or rather was ruling (as a matter of law) that it
lacked power to depart. If a district court misapprehends its legal authority to depart
under the sentencing guidelines, we exercise plenary review. See, e.g., United States v.
Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998). But if a district court acknowledges
its authority to depart and decides not to do so, we lack appellate jurisdiction. United
States v. Stevens, 223 F.3d 239, 248 (3d Cir. 2000); United States v. Denardi, 892 F.2d
269, 271-72 (3d Cir. 1989). The fall back rule is stated in United States v. Mummert, 34
F.3d 201, 205 (3d Cir. 1994). There we held that, where it is impossible to tell whether
the district court’s ruling is based upon the proper exercise of discretion or an improper
interpretation of the applicable legal standard, the correct course of action is to vacate the
sentence and remand to the district court for clarification and reconsideration of its ruling.
Bishop argued for a downward departure on two grounds: 1) diminished mental
capacity under Section 5K2.13 of the Guidelines; and 2) family circumstances under
Section 5K2.0. The District Court denied the request. In so ruling the Court did not state
whether its denial of the departure request was based on legal or discretionary grounds.
However, we are satisfied that the record shows that the decision not to depart was
discretionary.
During the sentencing hearing, the government acknowledged the District Court’s
authority to depart.
Mr. Costello: Your Honor, briefly just on the both
the departure motions, the government’s position and it’s set
forth in our response, I don’t intend to go through that unless
Your Honor has specific questions but simply our position is
that the defendant has not established that he was suffering
from a significantly diminished mental condition, mental
capacity, at the time he committed the offenses for which he
is being sentenced. The circumstances he states are certainly
worthy of Your Honor’s consideration and they certainly
affect Your Honor’s determination on where within the
applicable guideline range Your Honor sentences Mr. Bishop.
It’s the government’s position that they don’t reach the level
to justify departure.
Our position is the same with his family condition.
There is no question that Mr. Bishop has attempted to do a lot
of things for his family but, again, this does not reach that
extraordinary level that is required before your honor can
depart. There is no question Your Honor has the authority to
depart, the discretion to do so. We just don’t feel on either
basis you should exercise that authority.
(App. at 38-39) (emphasis added).
We are satisfied that, under these circumstances, the Court understood its
authority to depart and, although neglecting to make its ratio decidendi clear, exercised
its discretion not to do so. Cf. United States v. Castano-Vasquez, 266 F.3d 228, 234 (3d
Cir. 2001) ("[A] district court . . . is not . . . obligated to explain its refusal to depart
downwards."); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991) ("[A]
sentencing court does not commit reversible error under the Sentencing Reform Act by
failing to state expressly on the record that it has considered and exercised discretion
when refusing a defendant’s requested downward departure under the Guidelines."). We
hope and trust that instances where the district courts within this Circuit fail to articulate
the basis for their departure rulings will disappear. However, on this record, under our
jurisprudence, we are constrained to dismiss this appeal for lack of appellate jurisdiction.
See United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989).
The appeal will be dismissed. ________________________
TO THE CLERK:
Please file the foregoing Opinion.
By the Court:
/s/Edward R. Becker
Chief Judg